But the war in Iraq is not that type of war, it is an offensive and aggressive war, not a defensive war. It does not matter whether you say it’s legal or illegal. Saddam was not anywhere near the threat he was made out to be. And furthermore, for true defense, that is, the enemy comes right here onto our own land and are attacking us right here, one would not have a standing army, rather one would have state militias. If a “draft” were to exist, the people that get drafted by it would go into those.

“We make important decisions in this country by voting through our representatives.”

So then why can’t we revoke the decision to go to war and just get out? That’s the best solution I see with Iraq.

“Nothing could get done to defend the country. That is what happens when any man can exempt himself from service by saying he’s against the war.”

But what if they had to prove in some way they really truly were against the war and not just making that up to widdle away from a draft to fight in a war they were originally promoting? See, the thing though with Iraq is that it is NOT a defense, we are NOT protecting this country over there we are imperialistically controlling and occupying someone else’s country. In that case any person SHOULD be able to exempt themselves from service! What *good* things do we have to lose by not being able to fight wars of aggression and imperialism? None! Imperialism is bad. You cannot exclude the type of war being fought from the argument.

Did you have time to read that article ?

If you did, i would like hear your opinion.

Though even if Leon Friedman is technically correct, it is unlikely that Supreme Court will ever overturn Arver.

As for myself, i am not an American citizen , i have no knowledge of your laws and i have no idea whether or not arguments in Leon Friedman´s article have been refuted.

My arguments against the draft certainly do not rely on any argument about any particular war, so I think if there is a draft certainly your arguments are on point. They also apply to a volunteer army as well. The idea that the war in Iraq is illegal is just a slogan. In fact, as wars go it has more legal standing than most.

The our intervention in Iraq is not illegal in any sense. It was approved by the Congress, funded by the Congress and run by the President. One of the reasons listed in the reasons for the war were Saddam’s violation of U.N. resolutions. I don’t care about that(except for WMD’s and the like) but in no way can this war be called illegal. Whether you like a war or not you have to fight in it when drafted or serve in some approved conscientier objector status of service. Otherwise leave the Republic. The thing preventing Congress from iniating wars is public opinion, risk and national interest. The President intends to increase the Army and Marines by almost 100,000 men and he will not need a draft to do so. Until the draw down in the 1990′s we had a much bigger army, navy and Marine Corps and no draft. I think those against the draft are falling into the trap of the Polish Parliment in which every Senator had a veto. Nothing could get done to defend the country. That is what happens when any man can exempt himself from service by saying he’s against the war.

Drafting would thus be in a way forcing people to commit a crime. That’s what the Iraq war is, a crime, it’s illegal, it’s wrong, it’s all of that.

But then you might argue, well maybe it is wrong because of that. But what if it’s there to keep our Congressmen from starting more wars in the first place since people might think twice about their support of the war if their own kids might be put in harm’s way? If so, why draft everyone (or their kids) who does _not_ support the war? They are not responsible for it and so do not deserve to be “punished”.

Societies throughout the enlightenment and thereafter often wrote universal law that only applied to a subset of that society due to the custom and structure of that society.

That is exactly what I was getting at with this:

The fact that an important moral and legal standard was set down in our Constitution, even if the signers had not considered all of its implications, should not easily be set aside. In fact, much of Lincoln’s views on slavery were informed by just such a realization.

Often we have set up laws feeling that by custom or other legal barriers that it would not apply to some situation or other, though there is no real reason it should not. It is not unreasonable to examine the implications of what general laws should be beyond the intention of the laws authors. That is different from making the words mean something different than what they plainly say, or the opposite of its intention. Expanding something in line with somethings intention is not the same as expanding something to pervert its meaning such as claiming a law which says everyone should be treated equally under the law means they should be treated differently under the law in order to make the outcome more similar. Instead, as Peter suggests, it was not illegitimate to apply equality before the law to people of different ethnicity or women.

Not sure I am expressing myself clearly, but I will argue strenuously it is not because my thinking is unclear;^} Except where I so admit of course!

The argument you objected to here was from Jim Webb, and (while I could be wrong) I don’t think jjv was advocating it, just offering it up as one defense.

Oh poo. I hate when I do that. Sawry jjv.

But you did say this, right?

I actually look forward to a Court that will simply say to some novel argument: “If that were true they wouldn’t have passed it or would have mentioned it.

But they did mention an exception, just not conscription.

But it’s really beside the point. And while I’m thinking of it, the founders didn’t write the 13th Amendment.

Societies throughout the enlightenment and thereafter often wrote universal law that only applied to a subset of that society due to the custom and structure of that society. And frequently we have, through both legislative and judicial process expanded the scope of such law in practice. As a society we’ve discovered often that law initially only intended to apply to white property owning men was also good for brown men too. And even for white and brown men without property. And (gasp!) women.

Not only the scope of such law has changed, but so has the implications of certain laws, as Lance has pointed out with the 4th Amendment. The 1st Amendment’s right to assemble has been subsequently interpreted to cover all manner of association, including contracts.

Don’t make the mistake of taking this as an argument for a living Constitution; it’s merely an aknowledgement of a living society. Under a government that is continuously writing laws that chip away at freedom, we should take as many opportunities to legally expand freedom that we can.

yours/
peter.

Thanks for the link.

Jvv and Xrlq,

If you don’t mind, I would be interested in what you have to say on this piece of mine, and heck, you might as well look at this as well. Only tangentially related, but given your interest in this I am curious.

One premise here is that we cannot draft unless its a regime destroying conflict. For us, WW II was not such a conflict. Had Germany and Japan won we would still exist (for a decent interval). It seems foolish to me that if a draft would prevent a crisis from reaching that level of trouble,it is unconstitutional but once were really in the soup, well ok, then we can draft.

I have made that very same argument about WWII on other questions, so it would be a bit inconsistent to walk away from that in this instance. Damn, hoisted on my own petard, except I am not claiming it is unconstitutional, but that I would like it to be and I don’t think the argument is clear cut that it is.

Now, if a draft would keep something from surely becoming a sure fire existential threat, I am certainly willing to consider that it should be done, though that is different from whether it is Constitutional. Of course, if the threat were that apparent, then we are really making the same argument are we not, in extreme cases the Constitution becomes more malleable. Certainly it did become so under Lincoln. Unlike many libertarians I harbor no deep seated hatred for Lincoln over that.

I think the ancient first republics all required free men to be soldiers. The founders and everybody else recognized that republics and soldier citizenry went hand in hand. Not to fight was to be expelled from citizenship. Part of the argument here is the conflict between ancient republican theory and more modern Lockean arguments. I think the founders looked more to the ancients for inspiration than the moderns but that is a big argument that I can’t flesh out here. But it leads me to believe the arguments that one could not draft under the original Constitution are not strong.

I am not sure they are very strong either, but they exist. Still I think this paragraph is pretty much correct. However, the ability to call out the militia I see being put forward by some is a power that I am not sure is analogous to a draft. My guess is when the document was drafted that people perceived it in different ways. Some of the Federalists might have considered a draft okay, most of the Republicans would not have. When the Constitution allowed the government to call out the unorganized militia, which was just free men of fighting age, the power being granted was not the right to force them to serve, but to give the federal government the right to form them into a fighting force, pay them, etc. I think you could argue that the power to draft if necessary was an implied power, and not forbidden, but I don’t think that is an open and shut case. When I get home I’ll pull out all my old stuff around this kind of thing and look it over.

Back to the “damn foolishness” argument, the Constitution does not explicitly authorize a draft, nor is it obviously a necessary antecedent to accomplishing the power to raise military forces, so I think you could easily argue it was never Constitutional if one is being strict about what the document said and the intentions of the founders.

A crotchety old judge might have said pre-Lincoln to the governments plea to be able to hold a draft: “If that were true they would have mentioned it. Its a damn fool argument get it off my docket.” Of course that assumes my understanding of what the intention of the relevant parts of the Constitution are correct.

After writing this I notice that someone at SayUncle is pointing out the same issue. He links to this speech by Daniel Webster in 1814 as an example of opposition on Constitutional grounds prior to the 13th. Here is an excerpt:

This bill indeed is less undisguised in its object, and less direct in its means, than some of the measures proposed. It is an attempt to exercise the power of forcing the free men of this country into the ranks of an army, for the general purposes of war, under color of a military service. To this end it commences with a classification which is no way connected with the general organization of the militia, nor, to my apprehension, included within any of the powers which Congress possesses over them. All the authority which this government has over the militia, until recently called into the ranks of an army, for the general purposes of war, under color of a militia power it has exercised. It now possesses the further power of calling into its service any portion of the militia of the States, in the particular exigencies for which the Constitution provides, and of governing them during the continuance of such service. Here its authority ceases. The classification of the whole body of the militia, according to the provisions of this bill, is not a measure which respects either their general organization or their discipline. It is a distinct system, introduced for new purposes, and not connected with any power which the Constitution has conferred on Congress.

But, sir, there is another consideration. The services of the men to be raised under this act are not limited to those cases in which alone this government is entitled to the aid of the militia of the States. These cases are particularly stated in the Constitution, “to repel invasion, suppress insurrection, or execute the laws.” But this bill has no limitation in this respect. The usual mode of legislating on the subject is abandoned. The only section which would have confined the service of the militia, proposed to be raised, within the United States has been stricken out; and if the President should not march them into the Provinces of England at the north, or of Spain at the south, it will not be because he is prohibited by any provision in this act.

This, sir, is a bill for calling out the militia, not according to its existing organization, but by draft from new created classes; — not merely for the purpose of “repelling invasion, suppressing insurrection, or executing the laws,” but for the general objects of war ­ for defending ourselves, or invading others, as may be thought expedient; — not for a sudden emergency, or for a short time, but for long stated periods; for two years, if the proposition of the Senate should finally prevail; for one year, if the amendment of the House should be adopted. What is this, sir, but raising a standing army out of militia by draft, and to be recruited by draft, in like manner, as often as occasion may require?

Now Webster is not the last word on this matter of course, but obviously I am not speaking on some ridiculous concern in light of our Constitution either. I had never before considered the issue as anything other than a pragmatic one or as one which a free people should approach with trepidation as opposed to a Constitutional one. For that I thank Michael. I also thank everyone here for putting some meat on either side. I’ll now go home and do a little more research.

Two thirds of WW II soldiers were draftees, and they mostly fought overseas. One premise here is that we cannot draft unless its a regime destroying conflict. For us, WW II was not such a conflict. Had Germany and Japan won we would still exist (for a decent interval). It seems foolish to me that if a draft would prevent a crisis from reaching that level of trouble,it is unconstitutional but once were really in the soup, well ok, then we can draft.

Because of the extremely low death tolls to our side we simply have no need of a draft. We would spend more on sifting out the bad soldiers (especially if women were subject to the draft) than any military advantage gained. But Constitutionally I think it remains in the quiver. I signed up for the selective service register when I turned 18. Was it illegal for the Government to force me but not women to do so? No.

And in one last defense of the Supreme court as opposed to xlrq’s more reasoned opinion. I actually look forward to a Court that will simply say to some novel argument: “If that were true they wouldn’t have passed it or would have mentioned it. Its a damn fool argument get it off my docket.” Instead we get same sex marriage, no creches on Christmas, and penumbras.

I also think during the Civil War there was a lot of agitation that they were drafting (“enslaving”) white men to free black men from slavery. Its not like this is the first time its come up. The victors rejected that agrument and I doubt they would have enshrined it in amendments that you had to pass in order to rejoin the union. In other words in 1880 if the South seceded again could it plausibly be argued this time we couldn’t use the draft to whack ‘em again because of the 13th amendment?

And as what I hope is my final commentary, I think the ancient first republics all required free men to be soldiers. The founders and everybody else recognized that republics and soldier citizenry went hand in hand. Not to fight was to be expelled from citizenship. Part of the argument here is the conflict between ancient republican theory and more modern Lockean arguments. I think the founders looked more to the ancients for inspiration than the moderns but that is a big argument that I can’t flesh out here. But it leads me to believe the arguments that one could not draft under the original Constitution are not strong.

Since the quote was from Webb, I don’t think we should assume that is jjv’s position.

You’re confusing two different things. The conjecture that we should all be willing to give to the poor doesn’t mean street winos should be able to break into your house and take your stuff. Your argument that we should submit to coerced servitude—give up a portion of our short, irreplacable lives under threat of prison— in order to preserve freedom is galling.

yours/
peter.

A draft would remedy this and other shortfalls, not merely by offering up more manpower and a less delicate command environment, as opponents of the draft so often maintain, but by causing a much-needed reorientation of priorities. The military is not a job, any more than paying taxes is a job. In fact, military service might be equated to a tax. We each surrender a portion of our income to the common good, and we should all be willing to give a portion of our lives in order to assure that our freedoms will not disappear. It is so very basic, and yet so much maligned in the cynical wake of Vietnam: conscription is not slavery, it is societal duty.

a bunch of high school kids who got hooked on Ayn Rand and then forgot to grow out of it. They had obsessive personalities but no serious experience of the world, and this toxic combination led to a genuine, sincere, completely delusional belief that Atlas Shrugged wasn’t a monomaniacal flight of fancy, but a blueprint for society that could actually be put into practice.

Patterico even cites her! We are unreasonable, inexperienced cloistered geeks. Or so say Kevin Drum. So we won’t accept your logic or expertise. Fingers are firmly planted in our ears.

Finally, the petitioner argues that conscription is involuntary servitude, and therefore violates the plain language of the Thirteenth Amendment unless it is imposed as a punishment for a crime. OK, Smartypants, you got us there. Our inquiry does not end here, however. More generally, we must determine whether Congress intended the Thirteenth Amendment generally to supersede, repeal or in any way affect the war powers of the federal government as provided for in the Constitution as it existed prior to its ratification, or more specifically, whether it intended to limit future drafts to convicts. We hold that Congress did not intend the former, and sure as hell did not intend the latter. Under the doctrine of implied repeal, a later amendment that does not explicitly repeal an earlier one may be found to repeal it implicitly where the two provisions are in irreconcilable conflict, or where the latter act covers the whole subject of the earlier one and is clearly intended as a substitute. Neither of these criteria are present here. Where neither statute or constitutional provision can reasonably be construed to nullify or repeal the other, both will instead be construed in a manner to avoid unnecessary conflicts between the two. Interpretare et concordare leges legibus, est optimus interpretandi modus. Further, even under the strictest applications of the plain meaning rule, the plain meaning of a statute or constitutional provision may be set aside where its mechanical application would produce results that are absurd, unworkable or, as in this instance, downright retarded. Interpretare leges ad retardum est pessimus interpretandi modus. Accordingly, petitioner’s “hail Mary” request for the implicit repeal of Clauses 11-16 of Article I, Section 8 is denied.

Problem solved.

yours/
peter.

I don’t think the constitution is a libertarian document.

I’ll agree with you there, libertarians, including civil libertarians are often guilty of reading more into the Constitution than is warranted.

Nevertheless, I don’t think the matter can be settled so easily. It is an historical fact that many felt the Constitution at its signing was incompatible with large standing armies of any type. Hamilton’s modest efforts to establish a small one was one of the many reasons he lost influence towards the end of his life.

Nor is the textual argument to be easily dismissed. While I am not a strict textualist, the text matters a great deal. The fact that an important moral and legal standard was set down in our Constitution, even if the signers had not considered all of its implications, should not easily be set aside. In fact, much of Lincoln’s views on slavery were informed by just such a realization.

The Constitution was set up when few would have considered a draft a possibility, but impressment, quartering of troops and other ways that the military could force itself upon the populace was an issue. We know how they felt about that, and I don’t see why they would have considered a draft any different than impressment. Possibly they would have, but it seems unlikely.

The fourth amendment against unreasonable search and seizure is an interesting example of how the text should not be so easily limited. There was obviously little reason for the convention to consider alternatives to physically searching a house that are very available to the authorities today. While it is debatable to what extent the fourth amendment should be extended to wiretapping, listening devices, etc., I think it would be odd to claim it has no bearing.

I am not claiming such things are perfectly analogous, but some principles, regardless of the intentions of the authors, cannot be waived away. So, for example, forcing people to work for the government, even while being paid, to build roads and other things outside of wartime would undoubtedly be challenged on many grounds including the 13th. In fact I am pretty sure the 13th would hold as having forbidden such a thing though the 13th was not put in place to deal with such an eventuality as far as I know. Obviously in the one direct case it did not apply to actual soldiers. Legally I find that pretty dubious.

To put it simply, the text matters, whatever the authors intended. It may not be the final word, but it does have to be addressed.

In this instance, unless you are willing to deny people the right to vote if they don’t serve or some other Heinlenesque proposal the freedrider problem is insupportable.

I think it is worth discussing that the times of a draft in this country, particularly WWII and the 50′s are looked upon as the good old days. The end of the draft in the 70′s and its rejection by the 60′s generation as part of general societal decay.

I actually think the draft is a bad idea but am having a hard time concieving of a constitutional argument (other than the textual one made without regard to the 13th amendment’s history)that can explain why Congress divested itself of the power to conscript armies without discussing the matter.

In his testimony before the commission, Mr. Westmoreland said he did not want to command an army of mercenaries. Mr. Friedman interrupted, “General, would you rather command an army of slaves?” Mr. Westmoreland replied, “I don’t like to hear our patriotic draftees referred to as slaves.” Mr. Friedman then retorted, “I don’t like to hear our patriotic volunteers referred to as mercenaries. If they are mercenaries, then I, sir, am a mercenary professor, and you, sir, are a mercenary general; we are served by mercenary physicians, we use a mercenary lawyer, and we get our meat from a mercenary butcher.”

It doesn’t answer the legal question, but it sure frames the moral one.

In the meantime, however, it may be true that “if people want a draft they can have one” but I don’t believe that sentiment can fairly be attributed to nation ruled by law. If the law says no “involuntary servitude” people should be able to rely upon that proscription meaning what it says. By that same token, of course, I would expect that Congress would be limited to its actual powers as enumerated in Article I, and most especially those powers concerning “interstate commerce.”

The fact remains that courts can and will do what they please when it comes to certain issues, but I don’t think that we should simply abdicate that ground. Forcing the Court to at least tell us why “involuntary servitude” should be restricted to only those activities resembling antebellum slavery would at least preserve the appearance of a body politic that is ruled by law.

Michael asks a perfectly good question. It is a question, not an answer.

I’ll let him take on whether he thinks the legal precedents you cite influence what he thinks the answer is (he is the lawyer) but do think it is an odd statement to say that the draft can be characterized as expressing the will of a free people, given that it is a people’s freedom that is being taken away. A free people so inclined could certainly volunteer in the numbers necessary.

The fact is if the people want a draft they can have one, and if not, not. We have never Constitutionally prohibited it. It would be a criminal usurpation of the worst sort if during war time a court determined to take the draft from the aresenal of democracy. I do not think we need one now and that Rangel is venal, foolish and destructive. Judicial rulings that choose for a free people how it will defend itself are worse.